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Shop owners need to reasonably protect their patrons

26 May 2022 Rethabile Shabalala and Anika de Kock, Norton Rose Fulbright

The High Court in Gqeberha has confirmed that the shop owner has the legal duty to take the reasonable steps to prevent harm to its patrons and to take the reasonable steps to warn customers of potential dangers.

Whilst shopping at the store of the defendant, the claimant, slipped and fell due to cake flour that was spilled on the tiles of the floor. As a result of her fall, she sustained bodily injuries and sued the defendant for her damages.

The claimant alleged that the defendant had a legal duty to ensure that its store was safe and free from any danger that could pose a risk to members of the public and the defendant was negligent in not ensuring the floor was clean. The defendant pleaded contributory negligence on the part of the claimant on the basis that she should have kept a proper lookout and that she failed to take reasonable steps to prevent her fall.

The defendant’s witness indicated that she saw one of the employees of the defendant packing flour when the claimant fell and conceded that on a balance of probabilities the cake flour on the floor caused the event and the claimant’s damages.  The incident was captured on CCTV camera, and it was clear from the video footage that the plaintiff slipped on something.

In considering the liability of the defendant, the court had to determine the wrongful conduct by the defendant and its negligence.

Defendant’s negligence:

The court held that the defendant or its employees had the legal duty to keep the floor clean and free of hazards to the shoppers and the fact that the defendant’s witness did not see the spillage did not absolve the defendant from its legal duty. The court referred to the case of Probst v Pick ‘n Pay Retailers (Pty) Ltd[1] [1998] 2 All SA 186 (W) and said that when shopping, shoppers focus their attention on the shelves and the goods inside the store and not the floor. The flour, being a white substance against the white tiles, was not visible to the claimant and the defendant should have ensured its floors were kept clean or warned shoppers of the hazard.

The test for negligence is the failure to take preventive steps once it is foreseeable that the conduct could injure another and cause them to suffer a loss. The court took the concession of the defendant’s witness into account and held that on a balance of probabilities the flour spilled on the flour was caused by the employee packing the flour, satisfying the requirement of reasonable foreseeability. It was not an onerous task for the defendant’s employees to clean the flour or to warn shoppers of the risk In the circumstances, there was no contributory negligence on the part of the claimant

This case serves a reminder that the shop owner always has a legal duty to take reasonable steps to ensure that their premises are free from hazards and to take precautions to warn customers about potential hazards.

Pete v Boxer Superstore (Pty) Ltd (1785/2021) [2022] ZAECPEHC 9 (5 May 2022)

First published by: Financial Institutions Legal Snapshot

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